Legislated Rights as Trumps: Why the Notwithstanding Clause Overrides Judicial Review

Abstract

What is the legal effect of the Charter’s notwithstanding clause? This article argues that the notwithstanding clause makes exception to judicial review. A careful reading of the clause shows that it does not make exception to Charter rights and freedoms, but that the subjunctive mood of the text requires courts to treat laws as though selected parts of the Charter did not exist. The conditionnel passé of the French text has the same counter-factual meaning. The counter-factual world in which laws operate as they would but for provisions of the Charter is a world where courts could not question the consistency of laws with selected Charter rights and freedoms as a first step towards declaring them “of no force or effect” under the Constitution’s supremacy clause. Courts must legally treat such laws as though Charter provisions do not exist to be applied to them, but of course the constitutional provisions continue to exist as fundamental law. Because the provisions do exist, judgements about their consistency with statutes invoking section 33 are left to the political process. Legislation properly invoking the notwithstanding clause remains open to the judgement of citizens and legislators as to whether it complies with rights, but it prohibits courts from making such judgements. Reading section 33 as “notwithstanding judicial review” aligns well with the historical purpose of the two prairie premiers who crafted and championed it in 1982: Alan Blakeney and Peter Lougheed. The purpose of the clause is to democratically enact legislated rights as trumps against judicial review. The article concludes by reflecting on how reading section 33 as “notwithstanding judicial review” is justifiable as a matter of political morality because it offers a standard for holding legislators accountable for using the clause to protect rather trump rights.

Keywords: notwithstanding clause, section 33, Charter of Rights and Freedoms, judicial review, supremacy clause, constitutional rights, legislated rights